Outgrowing the government: Medical cannabis access in Canada in light of the Allard decision

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Each week, new retail storefronts are opening in the city of Toronto. But these aren't your average retailers.

Medical cannabis dispensaries, storefronts which dispense cannabis on-site to those with medical conditions, have historically operated on the margins of the law, providing access to patients since a time in Canada when there was no legal means of doing so.

But this is not the slow uptake of a grassroots movement by the mainstream. What cities like Vancouver, Victoria and Toronto are experiencing can accurately be described as a dispensary boom -- neon lights and all. What is going on? Why now? And are they legal?

The answer is a complicated one. Cannabis dispensaries are not legal, per se. The only way to access medical cannabis in Canada is through the Marihuana for Medical Purposes Regulations (MMPR) -- the program created by Health Canada to open medical cannabis to a free market model which licensed a handful of producers (Licensed Producers) to grow and distribute cannabis under a heavily regulated system. For patients, obtaining medical cannabis under the MMPR is a protracted and impersonal process. Patients must get a "medical document," similar to a prescription, filled out by a physician, and then use that medical document to register with one of 29 Licensed Producers in Canada. The MMPR operates entirely on the basis of mail-order deliveries, and allows Licensed Producers to provide only dried cannabis or cannabis oil.

The MMPR program, unveiled in 2013, replaced the former Marihuana Medical Access Regulations (MMAR) program which provided medical cannabis patients a limited set of options to access their medicine: (a) through Health Canada -- which supplied one strain of dried cannabis despite varying therapeutic profiles amongst different strains; or (b) by applying for and obtaining a production license (either a Personal-Use Production License or Designated Person Production License) to grow their own or designate another person to grow for them. Though production licenses were intended to be phased out under the Conservatives' MMPR program, they were ostensibly grandfathered in by the injunction granted by the Federal Court in 2014. The injunction, upheld on appeal to the Federal Court of Appeal, allowed patients already holding production licences (and meeting certain court-imposed criteria) to continue growing, pending the outcome of the Constitutional challenge to the MMPR program in Allard et al v Majesty the Queen in Right of Canada. While the number of dispensaries had been steadily climbing in Vancouver, and to some degree, in Toronto, the injunction appeared to kick things into overdrive.

While not the case for all dispensaries, it seems to be common knowledge that these production licenses were, and perhaps continue to be, the lifeblood of dispensary supply. Aside from providing relief to patients who could not afford to purchase their cannabis under the MMPR, the injunction also provided some security to the dispensary as both a means of protecting growers and a viable business model. New entrants have pounced on the opportunity, with hundreds of storefront dispensaries opening up in Vancouver, Victoria and Toronto.

The legal landscape was further complicated by last week's Federal Court decision in the constitutional challenge to the MMPR program launched by Neil Allard and three other B.C. residents (the Allard decision). It was argued, and the Federal Court agreed, that limiting patient access to purchasing from Licensed Producers under the MMPR (affordability being identified as a major barrier), infringed Section 7 of the Charter, and on that basis, the entire MMPR was declared invalid. The decision was suspended for six months, giving the new Liberal government a window to amend the MMPR or enact a parallel medical marijuana regime.

So what? For one, the government will need to make considerable changes to create a functional program that provides safe and affordable access to patients, which might include a regime for personal growing. Some see it as setting the stage for further commercialization of medical cannabis and the entrenchment of the burgeoning dispensary industry. For Licensed Producers who spent enormous sums of money to comply with the MMPR, the decision is a potential game changer -- likely, they'll be forced to give up their stronghold on production and distribution of medical cannabis. While perhaps not welcome news for the 29 Licensed Producers in the country, it's not necessarily a complete disaster. Growing requires investment into equipment, and at least some knowledge or experience. Licensed Producers will be well positioned to run with whatever production and distribution system is legislated.

What seems to be getting lost in the conversation so far surrounding the Allard decision is the opportunity for patient care. The government has the opportunity to wipe the slate clean and put an end to the Conservative cycle of regulate/challenge/strike down/re-adjust. Licensed Producers have been forced to conform to a broken, hyper-regulated regime which hamstrings their ability to deliver affordable, patient-centred access. Meanwhile, dispensaries have been forced to operate around the law, leaving patients vulnerable to abuse by the bad apples. The best of both have developed patient-focused practices that need to be incorporated into whatever regime is to come. Inevitably, some of the players are going to lose out. With any luck, the new Liberal government will recognize those operating within and outside of the law that have established sound, patient-focused practices and legislate a program which also supports them.

Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

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